The United States Congress authorized the Occupational Safety and Health Administration (OSHA) to promulgate occupational safety and health standards in the Occupational Safety and Health (OSH) Act of 1970.1 A standard is the term used in the Act to describe a regulation issued by OSHA to protect worker safety and health. While Congress gave OSHA the authority to promulgate standards, it did not give OSHA free reign. Rather, the OSH Act mandates that OSHA follow certain procedures when setting standards and use certain criteria for determining the level of protection to be provided by the standards. Congress gave OSHA considerable policy discretion, but it allowed affected parties an opportunity to challenge OSHA's decisions in the United States Circuit Court of Appeals. After briefly describing the rulemaking procedures, this paper presents a discussion of the criteria used in setting standards with an emphasis on the flexibility given to OSHA in applying those criteria. The goal is to spark interest in the policy issues. For example, one issue addressed in this paper is the degree of protection OSHA standards provide. This paper neither dwells on technicalities, such as the time frames established for actions, nor presents a rigorous review of the issues. Those interested in a more fully developed analysis of the criteria and the details of the rulemaking procedure can read the OSH Act and other references on the subject.2
Section 6(a) of the OSH Act allowed OSHA to adopt consensus organization recommendations and established federal standards without going through notice and comment rulemaking during the first two years of the Agency's existence. After the two year limit expired, however, OSHA could issue or change standards only through adherence to the rulemaking procedures broadly described in the OSH Act and specified in 29 Code of Federal Regulation (CFR) Part 1911. The Act requires OSHA to provide public notice of any standard the Agency proposes to adopt along with a preamble laying out the Agency's reasons for its proposal and the evidence supporting the proposal or alternative proposals. This notice, called a Notice of Proposed Rulemaking (NPRM) must be published in the Federal Register. The public is invited to comment and provide evidence supporting either the proposal or alternative proposals. These comments are placed in a public docket for review. The record for OSHA's rulemaking for the Control of Hazardous Energy Sources rulemaking, for example, may be found in OSHA Docket S-012.
If requested, OSHA must conduct a public hearing on its proposal. Otherwise, OSHA usually conducts hearings on its own initiative, unless the regulatory issues involved are limited. This opportunity for a hearing distinguishes OSHA's procedures from other regulatory agencies which follow informal rulemaking procedures. A hearing makes the procedure a hybrid, in between formal and informal. During the hearing, OSHA allows questioning of witnesses from any rulemaking participant. OSHA subjects itself to the same questioning. Witnesses, however, are not sworn in, and they cannot be compelled to answer questions.
